The Judiciary On Vacation. Again.

Gautam Patel

In one respect, being a lawyer is very like being a schoolteacher, except that it pays much better. You get vacations. The annual calendar is vitally important: the first thing we do is to look at the red-letter days: long weekends, a four-week vacation in summer, two weeks at Diwali, another two over Christmas and the New Year and every public holiday in between, plus weekends. All told, High Courts work for only 210 days in the year, the Supreme Court for about 180 (lower courts work longer).

There was a time not very long ago when the summer vacation was about six weeks and, before that, longer still. It has been gradually reduced to the present level but each reduction draws bitter complaint. To hear us talk, one would think that a vacation is part of a constitutional right to life.

Our court vacations are a legacy of British rule. In those times, there were at least some good reasons for long summer breaks. Judges and barristers sailed home to England and the route, via Aden, took time.

Some lawyers used that break for remarkably adventurous activities. In 1889, the New York Times carried a wonderful story about John Duncan Inverarity, a renowned barrister practicing in Bombay, and his encounter with a lioness in Somalia. Inverarity—Bombay born and bred, of Scottish ancestry—was also a big game hunter. A correspondent in the Bombay Gazette reported that in Berbera, Inverarity hunted a lioness. To his misfortune, he did not make a clean kill. In the ensuing fracas, he was twice badly mauled by the wounded lioness before his two Somali companions killed her. Undeterred by the cat’s attempt to bring his practice to a premature close, Inverarity then photographed the kill, dressed his 16 wounds (13 from her claws, three from her teeth) with carbolic acid, rode back to Berbera (managing “only” six hours a day) and sailed off to Aden where he was examined by a resident surgeon and found to be in good health.¹

Now that we don’t have to set sail for Blighty (luxury cruises don’t count) and can’t go off shooting wildlife, the rationale for these extended vacations seems indefensible, especially when you look at the mounting case arrears. In 2002, Arun Jaitley, then the Union Law Minister and himself a Senior Advocate of the Supreme Court, answered what was described as his easiest question in Parliament. He said it was not feasible or advisable to reduce these vacations because of the “taxing” nature of work. That was an odd thing to say and, since then, the calls for reducing court vacations have continued to grow. Retired judges, parliamentarians, bureaucrats and ministers all point to the mounting arrears: over three million cases in the High Courts and, as of 2002, about 20,000 in the Supreme Court. Add to this the more ignoble traditions of our system — charging additional fees for appearances in the vacation, and only taking cases that are really ‘urgent’ — and we have a real problem on our hands.

Possessive as we are about our vacations (PILs against them have been filed and routinely dismissed), we lawyers are unable to come up with a single convincing reason why a vacation should be collective. Certainly everybody needs and deserves a vacation. We all love our holidays, taking time off to relax, to be with friends and family, to travel. But do lawyers need to do it all together?

It’s insulting to every other profession to say that lawyers need breaks because they work so hard. Doctors work hard, too, and so do engineers, architects, chartered accountants, film stars and dabbawalas. They all take their time off. They just don’t do it together. Imagine the entire medical fraternity going on holiday en masse. What do doctors do when they go on holiday? They have someone else take care of their practice. So should lawyers. And we should be clear about this: law firms, as opposed to sole practitioners, always have someone to attend to the firm’s work. It’s the individual practitioner who might be slightly inconvenienced, but only slightly: courts adjust, and perhaps we need a better system of stand-ins, like a doctor’s locum, or something like code-sharing. The fact that no one has tried a more efficient system is no reason to penalize the hapless entity at the bottom of the legal food chain, the litigant. Besides, judges and lawyers frequently take off even when courts are in session (I was recently told that a matter would have to be adjourned because my opponent was going to America for two months).

Judges are the ones who really need time off. Their work demands it. Our judges are possibly the most hard-pressed in the world. After listening to lawyers for five hours, judges must collate and analyze arguments, sift through the record, read further, write judgements. This cannot be easy—it’s probably like writing a thesis or a monograph on a daily basis—and it needs time for reflection. Judges do use their vacations and perhaps the leave to which they are entitled to complete their work. Court vacations are set by presidential orders approved by Parliament², and, in addition to all the “official” holidays, judges are also entitled to leave. Judges do use their vacations and perhaps the leave to which they are entitled to complete their work and attend to various administrative duties. But surely all judges do not need to take time off simultaneously. The mistake is equating the institution’s closing with the time off that judges need. The only real reason for an entire building to shut down is for annual maintenance and repair work, and that shouldn’t take more than a couple of weeks a year; and if you need more, it can be staggered.

In America, Federal and State appellate courts close for the eight or ten public holidays (Thanksgiving, Labour Day) and for about ten days over Christmas. For the rest, judges work on a rotating roster and schedule their work accordingly. In 1902, the New York Times noted with some alarm the mounting backlog of cases (around 10,000) and indirectly questioned the need for vacations. This is not to suggest that higher courts elsewhere do not have vacations; they do. The US Supreme Court has very long breaks between sessions, and the Court of Appeals in England has scheduled sessions. But the US Supreme Court takes selected cases, and none of those courts have case backlogs like ours. If it is to be need-based, then addressing the pileup of cases is surely a compelling need.

True, some public holidays in every country are supposed to honour the memory of past greats. Our trouble seems to be that we have altogether far too many historical heroes. Nobody seems to know quite what to do on their birthdays except head for the nearest hill station or beach. It seems unlikely that Chhatrapati Shivaji, Guru Nanak, Dr Ambedkar or Mahatma Gandhi would approve of this form of remembrance.

Here’s an idea: do away with all vacations and public holidays except Independence Day and Republic Day, and make everything else an elective holiday. Then let’s have a four-day week for court sittings. The fifth day — not a holiday — can be used by lawyers to attend to client conferences, drafting, preparing their cases, and by judges for other work. Excluding weekends, that’s a reasonable 260 working days in the year. Judges and lawyers can take other time off when they need to.

There are, today, about 41,205 civil suits pending trial in the Bombay High Court, 3034 of which are prior to 1989. The earliest is of 1968. Fully a quarter of the pending civil suits are for summary judgement, supposedly a fast track for money claims. No lawsuit should take more than 12 to 18 months to trial. It simply cannot be that someone who filed a suit to recover Rs.60,000 in 1984 or 1985, then a respectable amount, should be told in 2010 that he must wait another four weeks or more because his case is not ‘urgent’ and everyone is on holiday. At some point, he will likely be told that his claim is now too small. If he chooses to go on, he might or might not recover his claim and, if he does, it will only be the original sum unadjusted for the decline in the purchasing power of the rupee or inflation. Should he succeed, the defendant must then carry the burden of interest for 24 years. In that situation, to continue claiming that the entire judiciary ‘needs’ long vacations undermines the foundations of a rational justice delivery system.

Mea culpa: I love my court holidays as much as anyone else — I’ve grown used to them and love gloating about them to my less fortunate friends — so in saying all this I’m surely going to seriously annoy all my friends from court who will accuse me of being populist (a dangerous accusation to make, because it immediately plonks the accuser in the quite unsavoury position of a privileged minority).

But the case for vacations is non-existent, and is simply wrong. The case backlog has now brought the judiciary to a tipping point. Unless we do something radical, we risk a crippling loss of faith in the judiciary. And that is one thing we cannot afford.